October 1, 1999
Sites Unmask Online Investors
Before They Can Fight Back
By JASON ANDERS
THE WALL STREET JOURNAL INTERACTIVE EDITION
Every day, investors crowd online message boards and chat rooms to swap
thousands of often-scathing messages about companies. Most boards allow
postings to be made using aliases, adding to the no-holds-barred nature of the
chatter.
But with increasing regularity, and relative ease, companies are uncovering the
identities of their online critics. Most of the time, the users have no idea their
personal information has been revealed.
"Usually your name is turned over before you even knew somebody had asked
for it, and it's too late to fight it," says Lyrissa Lidsky, an associate professor at
the University of Florida College of Law, who has studied lawsuits filed by
companies against their online critics.
Web sites generally won't turn over users' personal information -- like names and
addresses -- unless faced with a subpoena. But such subpoenas are easy to
come by, lawyers say, and often impossible to fight.
Silicon Investor (www.techstocks.com), one of the most popular stock-chat sites,
says it tries to notify users who are the subjects of subpoenas, but says it has no
commitment to doing so. "It's just not practical for us. We would need an entire
subpoena staff to handle something like that," says Ethan Caldwell, general
counsel for Go2Net, Silicon Investor's parent.
Mr. Caldwell says the site receives about one subpoena a day, and in "about
half" of those cases is able to give users warnings that the site is about to turn
over their personal information. Since Silicon Investor is a subscription-based
site, that information includes credit-card numbers and billing addresses.
Mr. Caldwell admits that the warning is often only a few days before the
information is to be revealed, and may not give people enough time to fight the
request.
While it's obviously impossible for a user to fight a subpoena he doesn't know
exists, it's still difficult to block such a request even if given advanced warning.
Subpoenas are generally sought at the beginning of a civil case that has been
filed against "John Doe" defendants. Lawyers say courts generally issue
subpoenas without question, and are reluctant to block such requests so early in
a case.
"This is an incredibly tough issue for us. ... Whenever we inform someone that
there's a subpoena for their information, people ultimately think that somebody is
going to use this information to harass them or intimidate them. Sometimes, I
think that's a very legitimate fear to have," Mr. Caldwell says.
He says he has been personally troubled by some of the subpoenas he has
received from companies -- whom he believes may have questionable motives. "I
know at times this has a chilling effect on speech, and I really think that's tragic.
... But we're in a very difficult position," he says. "People sometimes say, 'My
anonymity is everything, that's why I'm here. Why won't Silicon Investor defend
me?' But ultimately, people have to be responsible for what they say."
Yahoo! Finance (quote.yahoo.com), a free stock-chat destination, doesn't try to
notify its users about subpoenas, in part because it has no idea who most of its
users are. "We don't collect or verify personal information, so there's no way we
could warn anyone," says Mike Riley, senior producer of Yahoo Finance.
Often, he says, Yahoo turns over an IP address, a sort of digital footprint left by
computers when they visit Web sites. Companies can then use that IP address
to track the user back to a particular Internet service provider, which can then be
subpoenaed to uncover the user's identity.
Internet giant America Online (www.aol.com), on the other hand, is widely
regarded as among the most user-friendly when it comes to handling
subpoenas. The service has a longstanding policy of giving its users two week's
notice before it responds to a subpoena for their personal information, so that
users have a chance to challenge the subpoena. (AOL also has a legal team of
about 55 lawyers, compared with the two attorneys who handle most of Silicon
Investor's subpoenas.)
"We just feel like this is the right thing to do. Our users deserve a chance to
challenge the subpoenas," says Kim McCreery, a spokeswoman for the Dulles,
Va., online giant.
Of course, fighting a subpoena means hiring an attorney -- an expensive and
often futile move, says Blake Bell, an attorney with Simpson Thacher & Bartlett
in New York. "In most cases, plaintiffs are going to be able to get the information
they want. A judge is going to be reluctant to try the case before it's even clear
who the anonymous parties are," says Mr. Bell, who runs a Web site,
CyberSecuritiesLaw (www.cybersecuritieslaw.com), that tracks so-called cyber
libel cases. "Also you have to remember that in many cases you may be dealing
with someone who isn't that familiar with lawsuits." Mr. Bell has represented
companies that have sought to unmask online investors.
"The average message-board user just isn't prepared for this," agrees Ms.
Lidsky, the University of Florida law professor. "If someone says, 'I'm going to
sue you for a million dollars,' that's enough to make most people's hearts stop,
and likely enough to silence them."
She says that no matter what the initial motivation may have been for a company
that brings this type of suit, the cases rarely end up as anything other than an
effort to silence a critic. "These people they're suing don't have any money to
pay for damages. There's nothing else to sue them for except silence."
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